DIRECTING THE SENATE COMMITTEES ON ENVIRONMENT AND NATURAL RESOURCES AND ON HEALTH AND DEMOGRAPHY TO INVESTIGATE, IN AID OF LEGISLATION, THE ALLEGED PRESENCE OF TOXIC AND HAZARDOUS WASTES IN THE FORMER U.S. MILITARY INSTALLATIONS OF SUBIC AND CLARK WITH THE END IN VIES OF DETERMINING THE LEVEL OF THREAT IT POSES AND IN ORDER TO INSTITUTE THE NECESSARY REMEDIAL MEASURES

DIRECTING THE SENATE COMMITTEES ON ENVIRONMENT AND NATURAL RESOURCES AND FOREIGN RELATIONS TO INQUIRE, IN AID OF LEGISLATION, INTO THE TOXIC CONTAMINATION WITHIN THE FORMER U.S. BASES AND TO RECOMMEND THE CREATION OF A MULTI-SECTORAL TASK FORCE COMPOSED OF REPRESENTATIVES OF THE PHILIPPINE AND UNITED STATES GOVERNMENTS AND THE SENATE COMMITTEES, CONCERNED NON-GOVERNMENTAL AND PEOPLE’S ORGANIZATIONS AND TECHNICAL/ SCIENTIFIC EXPERTS WHICH WILL COOPERATE IN THE PLANNING AND MONITORING OF THE THOROUGH STUDY, CLEAN-UP AND RESTORATION OF CONTAMINATED SITES IN SUBIC AND CLARK

URGING HIS EXCELLENCY PRESIDENT JOSEPH ESTRADA TO REQUEST THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO CONDUCT A STUDY TO DETERMINE AND IDENTIFY THE ACTUAL ENVIRONMENTAL DAMAGE AND CONTAMINATION RESULTING FROM THE OCCUPATION OF THE UNITED STATES ARMED FORCES OF SUBIC NAVAL BASE, CLARK AIR BASE, AND OTHER BASES, CAMPS, AND INSTALLATIONS IN THE PHILIPPINES, AND FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO ACKNOWLEDGE THE RESPONSIBILITY THEREFOR BY CLEANING UP OR PROVIDING THE PHILIPPINE GOVERNMENT WITH FUNDS, SPECIAL KNOWLEDGE, AND EQUIPMENT TO CLEAN THESE SITES OF ENVIRONMENTAL WASTES IN ORDER TO RESTORE THEM TO THEIR ORIGINAL STATUS

URGING THE SENATE COMMITTEES ON HEALTH AND DEMOGRAPHY, ON FOREIGN RELATIONS, AND ENVIRONMENT AND NATURAL RESOURCES TO INQUIRE, IN AID OF LEGISLATION, INTO THE HEALTH STATUS OF RESIDENTS OF COMMUNITIES WITHIN AND ADJOINING THE FORMER U.S. BASES WHO HAVE BEEN EXPOSED TO TOXIC CONTAMINATION FROM IMPROPERLY TREATED AND DISPOSED TOXIC WASTE

URGING PRESIDENT JOSEPH EJERCITO ESTRADA TO PURSUE, THROUGH THE APPROPRIATE JUDICIAL VENUE, LEGAL CLAIMS FOR CLEAN-UP OF TOXIC WASTES LEFT BY AMERICAN TROOPS IN THE FORMER U.S. MILITARY BASES, CLARK AND SUBIC, FROM THE GOVERNMENT OF THE UNITED STATES OF AMERICA

DIRECTING THE SENATE COMMITTEES ON HEALTH AND DEMOGRAPHY, AND ENVIRONMENT AND NATURAL RESOURCES TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, INTO SEVERAL REPORTS THAT TOXIC AND HAZARDOUS WASTES LEFT BEHIND BY ELEMENTS OF THE U.S. ARMED FORCES IN THEIR FORMER MILITARY BASES AT CLARK AND SUBIC HAVE CAUSED INJURY, ILLNESS, DEFORMATION, AND OTHER DISEASES TO RESIDENTS OF SAID BASES, AND INTO THE REQUIREMENTS FOR CLEAN-UP AND RESTORATION THEREIN

have considered the same and have the honor to submit this report to the senate, finding that

i. Based on the documents released by the U.S. Department of Defense, there is substantial environmental contamination in the former Subic Bay Naval Base and Clark Field Air Base;

ii. It is evident from the document released by the U.S. Department of Defense that the United States Government has knowledge of the existence and location of known and potential contaminated sites in the former Subic Bay Naval Base and Clark Field Air Base;

iii. The hazardous activities, operations and improper waste management practices engaged in the United States Government within the military bases under its effective control involved appreciable or foreseeable risk of causing environmental harm;

iv. The United States Government is presumed to know or had the means of knowing that such hazardous activities, operations and improper waste management practices were carried out by the U.S. forces within the military bases over which it had effective control and unhampered access;

v. The environmental damage caused in Subic and Clark was substantial and had serious adverse ecological, human health and economic implications for the residents within the area and for the Philippines in general;

vi. The hazardous activities, operations and improper waste management practices engaged in by the United States forces within the military bases caused the environmental damage;

vii. The 1947 Military Bases Agreement, as amended, did not grant any license or authority to the United States to commits acts of tort by indiscriminately disposing of toxic and hazardous wastes as it pleases, destroy the environment and endanger the lives of Filipino citizens in exchange for non-removable buildings and structures;

viii. Inasmuch as the activities conducted within the military bases and under the effective control of the U.S. caused substantial harm, the United States has the corresponding duty to repair and compensate for such damage;

ix. Despite allegations to the effect that the matter of reparation and compensation for toxic contamination is a purely moral question, there is sufficient basis to submit to an international body the legal question concerning the interpretation of Article VII of the 1988 Manglapuz-Schultz Memorandum of Agreement amending Article XVIII of the 1947 Military Bases Agreement;

x. Despite allegations to the effect that the matter of reparation and compensation for toxic contamination is a purely moral question, there is sufficient basis under customary international law for a cause of action against the United states for failing to ensure that the activities conducted by the U.S. forces within the former Subic bay naval Base and Clark Field Air base were carried out in such a manner as not to cause harm to the Philippines and its citizens.

and proposing the adoption of the following recommendations and their immediate implementation:

By the Department of Foreign Affairs:

1. To negotiate with the United states Government, through diplomatic channels, on the remediation of the areas affected with toxic waste contamination and to initiate preventive and curative measures in order to suppress the rising number of the victims of toxic waste contamination in Clark and Subic at the expense of the former. It should be negotiated along the lines of, or pursuant to, Principle 13 of the Rio Declaration on Environment and Development, of which the United States is a signatory, which provides that “States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction”;

2. To pursue through diplomatic channels, the creation of a Joint R.P.-U.S. Task Force that will conduct a thorough examination of the extent of toxic waste contamination in Clark and Subic, determine the ill effects thereof to the inhabitants, and implement the much needed remediation over these areas at the expense of the U.S. Government; and

3. In the event that the United States Government should refuse to effect a remediation of the toxic wastes that the latter left in the former bases of Clark and Subic, to recommend to the Chief Executive the filing of a suit, in behalf of the Republic of the Philippines, against the United States of America before the International Court of Justice pursuant to the principles of customary international law for failing to ensure that the activities conducted by the U.S. forces within the former Subic Naval Base and Clark Field Air Base were carried out in such a manner as not to cause harm to the Philippines and its citizens, and for a judicious and authoritative interpretation of Article VII of the 1988 Manglapus-Schultz Memorandum of Agreement Amending Article XVIII of the 1947 Military Bases Agreement;

By the Department of Health:

1. To continue the efforts in protecting the people from the ill effects of toxic waste contamination in Clark and Subic;

2. To continue strengthening the capability of its regional hospital, particularly the Jose Lingad Memorial, in managing, diagnosing and treatment of patients with illnesses that may be attributed to the toxic waste found in said areas;

3. To continue conducting a comprehensive health impact assessment and epidemiological surveillance studies to validate and monitor the reported illnesses among the residents in the vicinity;

4. To recommend to the Philippine Task Force on Hazardous Wastes, of which DOH is a member, to close down the identified contaminated areas; and

5. To work closely with the Philippine Nuclear Atomic Research Institute to determine the levels of radioactivity in the identified areas.

By the Department of Environment and Natural Resources:

1. To enforce thenceforth the provisions of Republic Act No. 6969 otherwise known as the “Toxic Substances and Hazardous and Nuclear Wastes Control Act” to forestall the repetition of similar subsequent toxic waste contamination throughout the country;

2. To effect the treatment of wells in the affected areas through chlorination or other scientific methods within or which may hereafter fall within the disposal of the agency;

3. To continuously conduct analytic research and study on the toxic waste issue; and

4. To study further the environmental impact assessment on the areas affected by the toxic contamination.

The Senate Committee on Environment and Natural Resources, Health and Demography, and Foreign Relations most respectfully recommend that the Chief Executive

1. Declare a state of environmental calamity in the specific areas affected with toxic waste contamination and direct the relocation of persons still residing within these areas;

2. Submit to an international body, in behalf of the Republic of the Philippines, the question concerning the interpretation of Article VII of the 1988 Manglapus-Schultz Memorandum of Agreement amending Article XVIII of the 1947 Military Bases Agreement in view of the differences in opinion by the United States and the Philippines, and the refusal of the United States to admit liability; and

3. In the event that the United States should refuse to effect a remediation of the toxic waste in the former Subic Bay Naval Base and Clark Field Air Base. to file a suit, in behalf of the Republic of the Philippines, against the United States of America before the International Court of Justice pursuant to the principles of customary international law for failing to ensure that the activities conducted by the U.S. Forces within the former military bases were carried out in such a manner as not to cause harm to the Philippines and its citizens.

Respectfully submitted:

JUAN M. FLAVIER ROBERT S. JAWORSKI

Chairman Chairman

Committee on Health and Demography Committee on Environment and Natural Resources

BLAS F. OPLE

Chairman

Committee on Foreign Relations

VICE CHAIRPERSONS:

GREGORIO B. HONASAN LOREN LEGARDA-LEVISTE

SERGIO OSMENA III RAMON B. REVILLA

RODOLFO G. BIAZON JUAN PONCE ENRILE

TERESA AQUINO-ORETA

MEMBERS:

RAUL S. ROCO RAMON B. MAGSAYSAY, JR.

VICENTE C. SOTTO III ANNA DOMINIQUE M.L. COSETENG

AQUILINO PIMENTEL, JR. ROBERT Z. BARBERS

RENATO L. “COMPANERO” CAYETANO JOHN H. OSMENA

EX OFICIO MEMBERS:

BLAS F. OPLE FRANCISCO S. TATAD

President Pro Tempore Majority Leader

TEOFISTO GUINGONA, JR.

Minority Leader

FRANKLIN M. DRILON

Senate President

ELEVENTH CONGRESS OF THE)

REPUBLIC OF THE PHILIPPINES)

Second Regular Session )

S E N A T E

——————————————————————————————

COMMITTEE REPORT NO. 237

Submitted by the Committees on Environment and Natural resources, Health and Demography, and Foreign Relations on ______________.

DIRECTING THE SENATE COMMITTEES ON ENVIRONMENT AND NATURAL RESOURCES AND ON HEALTH AND DEMOGRAPHY TO INVESTIGATE, IN AID OF LEGISLATION, THE ALLEGED PRESENCE OF TOXIC AND HAZARDOUS WASTES IN THE FORMER U.S. MILITARY INSTALLATIONS OF SUBIC AND CLARK WITH THE END IN VIES OF DETERMINING THE LEVEL OF THREAT IT POSES AND IN ORDER TO INSTITUTE THE NECESSARY REMEDIAL MEASURES

DIRECTING THE SENATE COMMITTEES ON ENVIRONMENT AND NATURAL RESOURCES AND FOREIGN RELATIONS TO INQUIRE, IN AID OF LEGISLATION, INTO THE TOXIC CONTAMINATION WITHIN THE FORMER U.S. BASES AND TO RECOMMEND THE CREATION OF A MULTI-SECTORAL TASK FORCE COMPOSED OF REPRESENTATIVES OF THE PHILIPPINE AND UNITED STATES GOVERNMENTS AND THE SENATE COMMITTEES, CONCERNED NON-GOVERNMENTAL AND PEOPLE’S ORGANIZATIONS AND TECHNICAL/ SCIENTIFIC EXPERTS WHICH WILL COOPERATE IN THE PLANNING AND MONITORING OF THE THOROUGH STUDY, CLEAN-UP AND RESTORATION OF CONTAMINATED SITES IN SUBIC AND CLARK

URGING HIS EXCELLENCY PRESIDENT JOSEPH ESTRADA TO REQUEST THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO CONDUCT A STUDY TO DETERMINE AND IDENTIFY THE ACTUAL ENVIRONMENTAL DAMAGE AND CONTAMINATION RESULTING FROM THE OCCUPATION OF THE UNITED STATES ARMED FORCES OF SUBIC NAVAL BASE, CLARK AIR BASE, AND OTHER BASES, CAMPS, AND INSTALLATIONS IN THE PHILIPPINES, AND FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO ACKNOWLEDGE THE RESPONSIBILITY THEREFOR BY CLEANING UP OR PROVIDING THE PHILIPPINE GOVERNMENT WITH FUNDS, SPECIAL KNOWLEDGE, AND EQUIPMENT TO CLEAN THESE SITES OF ENVIRONMENTAL WASTES IN ORDER TO RESTORE THEM TO THEIR ORIGINAL STATUS

URGING THE SENATE COMMITTEES ON HEALTH AND DEMOGRAPHY, ON FOREIGN RELATIONS, AND ENVIRONMENT AND NATURAL RESOURCES TO INQUIRE, IN AID OF LEGISLATION, INTO THE HEALTH STATUS OF RESIDENTS OF COMMUNITIES WITHIN AND ADJOINING THE FORMER U.S. BASES WHO HAVE BEEN EXPOSED TO TOXIC CONTAMINATION FROM IMPROPERLY TREATED AND DISPOSED TOXIC WASTE

URGING PRESIDENT JOSEPH EJERCITO ESTRADA TO PURSUE, THROUGH THE APPROPRIATE JUDICIAL VENUE, LEGAL CLAIMS FOR CLEAN-UP OF TOXIC WASTES LEFT BY AMERICAN TROOPS IN THE FORMER U.S. MILITARY BASES, CLARK AND SUBIC, FROM THE GOVERNMENT OF THE UNITED STATES OF AMERICA

DIRECTING THE SENATE COMMITTEES ON HEALTH AND DEMOGRAPHY, AND ENVIRONMENT AND NATURAL RESOURCES TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, INTO SEVERAL REPORTS THAT TOXIC AND HAZARDOUS WASTES LEFT BEHIND BY ELEMENTS OF THE U.S. ARMED FORCES IN THEIR FORMER MILITARY BASES AT CLARK AND SUBIC HAVE CAUSED INJURY, ILLNESS, DEFORMATION, AND OTHER DISEASES TO RESIDENTS OF SAID BASES, AND INTO THE REQUIREMENTS FOR CLEAN-UP AND RESTORATION THEREIN

have considered the same and have the honor to submit this report to the senate, proposing the adoption of the recommendations contained herein and their immediate implementation.

I. STATEMENT OF FACTS

1. On March 14, 1947, the Agreement between the United States of America and the Republic of the Philippines Concerning Military Bases was signed providing land areas for the delimitation, establishment, maintenance and operation of U.S. military bases in the Philippines. It designated bases to be retained by the U.S., including Clark Field Air Base in Pampanga, Subic Bay, Northwest Shore Naval Base in Zambales and Naval Reservations in Olongapo City.

2. Pursuant to the Agreement, Subic Bay Naval Base provided logistical, command, communications and training support to the U.S. Navy as well as practice areas for air-to-surface bombing, ship gunnery and shore fire control. The complex, among others, handled millions of barrels of fuel and petroleum products, held tones of ammunition and explosives and had ammunition storage space and a nuclear storage site. Clark Field Air Base likewise stored petroleum, oil, lubricants and ammunition.

3. In may 1990, negotiations started for a new military base agreement. On August 27, 1991, the U.S. and the Philippines signed a new agreement, captioned “Treaty of Friendship, Cooperation, and Security Between the Government of the Republic of the Philippines and the Government of the United States of America”, that allowed the U.S. to remain for another ten years. On September 16, 1991, this Chamber overwhelmingly rejected the 1991 treaty, ending the U.S. leasehold over Clark Field Air Baseand Subic Naval base. Prodded by the eruption of Mt. Pinatubo in 1991, the U.S. completed its withdrawal from Clark Field Air Base in November 1991 and vacated Subic Bay Naval base by November 1992.

4. On January 22, 1992, the National Security and International Affairs Division of the U.S. General Accounting Office submitted a report to U.S. Senator Daniel K. Inouye and Senator Ted Stevens of the Subcommittee on Defense, U.S. Senate Committee on Appropriations, and the U.S. Secretaries of Defense and State. Entitled, Military Bases Closure: U.S. Financial Obligations in the Philippines, the report claimed “no current liability for environmental damage” and stated,

“The services have identified contaminated sites, such as firefighting training facilities and underground storage tanks. The cost of bringing all contaminated sites into compliance with U.S. environmental standards could approach superfund proportions, according to Air Force and Navy officials. However, under the current agreement, the United States has no liability for this damage, DOD regulations require the services to comply with the environmental restoration, and the services have no plans for restoration. While the proposed new basing agreement contained and expanded environmental provisions, the Philippine Senate’s rejection of the agreement made the issue of increased U.S. environmental liability a moot point.”

5. On May 9, 1993, after conducting interviews and a site assessment of Subic, the World Health Organization (WHO) submitted its Mission Report on the Subic Bay environmental risk assessment and investigation program, listing areas and operations with considerable pollution potential, such as those which used and stored toxic chemicals, fuels, pesticides, herbicides, polychlorinated biphenyl (PCB), chlorinated solvents and explosives, produced hazardous wastes, as well as those which involved heavy engineering operations and sandblasting. It reported that landfills on site were used for all kinds of wastes, including hazardous waste materials; that industrial waste waters, untreated sewage and polluted storm water drains were all discharged to Subic bay, mostly without treatment; and that very large volumes of fuel and oil were stored, transferred and used around the site. The Mission report recommended further sampling and analysis programs of near-surface and deeper soils, groundwater and sediments in waterways and Subic Bay, costing around U.S. $600,000.00.

6. In 1994, due to the danger of being swamped by lava and mudflow from Mt. Pinatubo, a village consisting of 1,072 families had to evacuate to the former Clark Air base Communications Center (CABCOM) at Clark Field Air base. While in CABCOM, the residents complained of unusual taste, smell and color of the water coming from several shallow artisian wells. An unusually high occurrence of skin diseases, miscarriages, stillbirths, birth defects, cancers, heart ailments and leukemia was later observed among the residents. A community leader, Mandy Rivera, monitored the health condition of 500 families and recorded 144 persons sick with illnesses caused or aggravated by polluted water from the artesian wells. Seventy-six of those monitored have already died./1

7. In 1993, after finding no legal barrier to the release of information to the Philippine Government, the U.S. Department of Defense released documents which included “Potential Restoration Sites on Board the U.S. Facility, Subic Bay”’ (October 1992) by the U.S. Navy, “Underground Storage Tank Inventory: Subic Bay, Philippines” and “Environmental review of the Drawdown Activities at Clark Air Base, Republic of the Philippines”, by Col. John J. Allen (September 1991). The U.S. Embassy released additional information on the former bases in April 1994.

8. On August 13, 1994, a team composed of Paul Bloom, Ph.D., Alex Carlos, M.S., Jorge Emmanuel, Ph.D., and Theodore Schettler, M.D. released a report entitled, “An Environmental and Health Impact Report on Known and Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines” based on incomplete U.S. Department of Defense documentation provided by the U.S. State Department and the team’s site visits. The paper showed that based on incomplete U.S. Defense Department reports, the former bases contain sites known to be contaminated by toxic wastes that pose risk to human health, and recommended actions to be taken to initiate a complete assessment of the toxic contamination and the clean-up process.

9. The Department of health released in 1995 the results of 32 well samples taken inside and adjacent to Clark, five of which tested positive for oil and grease.

10. In 1996, A Canadian epidemiologist, Dr. Rosalie Bertell, conducted a health survey of 761 families in 13 communities around Clark Field Air Force Base. In her letter to President Fidel Ramos dated October 9, 1997, Dr. Bertell noted the “startlingly high” level of kidney diseases and kidney problems reported in the area which is “apparently connected with both water and air exposures.”

11. In November 1996, the Subic bay metropolitan Authority released the result of Woodward-Clyde Environmental Baseline survey and Environmental Quality Survey of Subic. The report stated, “the only areas where restrictions on development and land use are recommended are the Subic Landfill, OSIR Basin Landfill, and the main explosives Ordnance Disposal area at Camayan Point. Restrictions are recommended at the landfills due to the evidence of hazardous wastes including asbestos in the Subic landfill, and metal and fuel contaminated soils in the OSIR Basin Landfill.” With regard to the level of concentration of certain hazardous wastes in the soils and groundwater, the study stated that “(b)ased on the result of this preliminary survey, the level of contamination detected in most of the sites investigated does not pose a significant risk to human health and the environment if the land use of these areas remain the same.”

On human health risks, the study stated that “(b)ased on the screening level risk assessment, the concentrations of chemicals found in soils at 44 sites investigated in the current study pose a negligible risk to health of the current non-residential occupiers/users of the sites due to an identifiable exposure pathway, and the non-residential land use of the area. There is also no evidence of potentially unacceptable health risk to people living off-site. Any contaminant in the groundwater of SBF will not migrate to Olongapo City since the groundwater flows towards Subic bay.”

The study indicated a list of seven specific contamination sites, remediation of which is estimated to cost P175 to 250 million.

12. In September 1997, the Clark development Corporation released a summary of Weston International Environmental baseline Study and Soil and Water Baseline Study at Clark. The environmental baseline study identified eight sites with contamination ranging from oil and petroleum lubricants, pesticides, PCB and lead. “These are contaminants found elsewhere in places where you have aviation and motorpool areas. Some water production wells registered levels of arsenic and dieldrin above Philippine National Standards (PNS) but the quality of water being taken from the taps pass the required national standards. The contaminated sites have been covered with topsoil and have been restricted if they are not isolated areas. The contaminated wells have been shut down and secured.”

13. In a letter dated November 20,997, The Department of Foreign Affairs (DFA) Secretary Domingo Siazon proposed to U.S. State Secretary Madeleine Albright the establishment of a joint Philippine-U.S. Task Force that will assess the degree of toxic and hazardous waste contamination. Citing reports on surveys conducted by international environmental contractors disclosing the existence of areas of contamination in Subic Bay and Clark, he requested for assistance in the technical evaluation of the baseline surveys conducted by Woodward-Clyde and Weston International./2 Secretary Albight’s April 8, 1998 reply to Secretary Siazon’s letter markedly failed to respond to the issue of toxic waste contamination or the proposal to form a joint Philippine-U.S. Task Force. Secretary Siazon met U.S. Secretary Albight during the visit of President Ramos to the U.S. in April 1998 and again raised the issue of toxic hazardous waste.

14. On May 8, 1998, President Fidel V. Ramos created the Philippine Task Force on toxic waste composed of representatives from the Department of Environment and Natural Resources (DENR), Department of Health (DOH), Department of Science and Technology (DOST), Philippine Nuclear Research Institute (PNRI), Clark Development Authority (CDA) and Subic Bay Metropolitan Authority (SBMA).

15. On August 31, 1998, noting that toxic and hazardous wastes from the U.S. military have been found “in significant quantity” in Subic Bay, Olongapo and Clark Field, Pampanga, DENR Secretary Antonio Cerilles formally requested Foreign Affairs Secretary Siazon to convey to the U.S. a “request for assistance for the cleaning up and remediation of confirmed contaminated sites” in the former military bases.

16. On April 13, 1999, toxic waste victims filed a complaint with the Commission on Human Rights (CHR). After conducting an onsite investigation, the CHR Forensics Officer reported that the residents medically examined manifested signs and symptoms consistent with chemical exposure. Of those examined, 13 children aged one to seven years old showed signs of birth defects and neurological disorder; four females suffered spontaneous abortion and stillbirth, which can be attributed to mercury exposure; and residents showed signs of central nervous system disorders, kidney disorder and cyanosis (methemoglobin) which can be traced to nitrates exposure. The laboratory analysis of water samples collected by the CHR team from different deep wells sites at Clark Air Force Base Command revealed the presence of mercury and nitrates.

17. On February 3, 1999, then the Chair of the Senate Environment Committee Senator Loren Legarda-Leviste brought the issue of toxic contamination in the former bases to the attention of U.S. Senator John Chafee, Chair of the U.S. Senate Environment and Public Works Committee. Replying to Senator Legarda-Leviste in a letter dated June 24, 1999, U.S. Deputy Undersecretary of Defense Sherry Goodman stated hat the U.S. Government has no legal obligation to clean up the toxic waste in the former U.S. bases in the Philippine. Undersecretary Goodman maintained that the 1947 Military bases Agreement, as amended, did not require the United States to conduct any environmental restoration upon its termination and that the Philippine government expressly agreed to waive any right to demand cleanup in return for the United States’ agreement not to seek compensation for improvements.

18. The Senate Joint Committees on Environment and Natural Resources, Health and Demography, and Foreign relations conducted three committee hearings on Proposed Senate Resolution Nos. 158, 162, 172, 281, 303, and 460 on July 21, July 30 and September 15, 1999, and an executive session on October 14, 1999 for the purpose of assessing the impact of toxic waste presence in Subic and Clark. Other concerns were raised, such as the extent of contamination, the imminent danger to life, health and well being of the residents therein, and the question of whether the U.S. is obliged to clean up the former military bases.

19. On January 18, 200, President Joseph Estrada issued Executive Order No. 202 creating the Philippine Task Force on Hazardous Wastes in the former U.S. Military Installations under the joint supervision of the Department of Foreign Affairs and Environment and Natural Resources. Funded from the President’s Contingent Fund in the amount of P50,000,000.00, the Philippine Task Force (PTF) is tasked to perform the following functions, to wit:

“1. Formulate plans of action in addressing the issue of hazardous wastes in the former U.S. military installations.

“2. Ensure that studies are undertaken to assess the extent of hazardous waste contamination and its effects on the environment and human health.

“3. Initiate and coordinate clean-up and environmental restoration efforts of contaminated sites identified and assessed by Subic and Clark studies.

“4. Undertake immediate actions to address the identified environmental and health concerns in Subic, Clark and other former military bases.

“5. Ensure long-term capacity building programs of technical transfer which focus on contamination identification, contamination assessment, contamination clean up and laboratory analysis at the former U.S. military installations.

“6. Secure the firm cooperation of U.S. agencies. the private sector and other entities in harnessing and making available technical, administrative and financial resources for effective implementation of the plans of action, programs, projects of the PTF.

“7. Assist in the formulation and implementation of applicable government policies, laws, rules and regulations in connection with the clean up of hazardous wastes in former U.S. military installations.

“8. Coordinate the conduct of public information, education, communication campaign on hazards and risks, if any, involved in the reuse of former U.S. military installations in the Philippines and the need for contamination assessment and clean up.

“9. Pursue other related functions which may be deemed necessary by the President.”

II. ISSUES

The following are the factual and legal issues to be resolved by the Committees:

A. Whether or not the Philippines sustained environmental harm.

B. In case of any affirmative finding, what activities or operations within the military bases caused the environmental harm? Which of the two States had effective control of the activities or operations within the military bases that caused the environmental harm?

C. In the event of a finding that the activities or operations of the United States within the military bases caused the environmental harm:

(a) Can the U.S. be held liable under the 1947 Military Bases Agreement, as amended?

(b) Can the U.S. be held liable under customary international law?

III. FINDINGS

A. WHETHER THE PHILIPPINES SUSTAINED SUBSTANTIAL ENVIRONMENTAL HARM

i. U.S. General Accounting Office Report

That the Philippines sustained environmental harm cannot be denied by the U.S. Government. While rejecting U.S. liability, a governmental agency of the U.S., the General Accounting Office, reported that the Air Force and Navy officials had identified significant environmental damage of Superfund/3 proportions at Subic and Clark. The U.S. General Accounting Office report states:

“CONTAMINATED SITES HAVE BEEN IDENTIFIED AT BOTH BASES

“Although the services are not generally required to comply with U.S. standards at overseas locations, some service regulations indicate that they are intended to apply overseas. Environmental officers at both Clark and Subic Bay Naval Facility have identified contaminated sites that would not be in compliance with U.S. environmental standards. Their identification of contamination is based on limited environmental surveys of Clark Air Base and Subic Bay Naval Facility. No soil and water testing has been conducted in the contaminated areas; therefore, the extent of the damage is not known. According to one Air Force official, testing alone would be very costly, and the cost of clean up and restoration would be significantly greater. According to base officials, both Clark and Subic Bay Naval Facility have common environmental problems with underground storage tanks and fire-fighting training facilities that do not comply with U.S. standards. For example, the underground storage tanks lack leak detection equipment, and fire-fighting facilities have no drainage systems. Instead, the fuel and chemicals used in fire-fighting exercises seep directly into the soil and water table, and at the Navy facility, the overflow goes directly into Subic Bay.

“Navy environmental officials have identified the following sites at the Subic Naval Base Facility that, in their opinion, represent significant environmental damage:

“The Subic Naval Base Facility does not have a complete sanitary sewer system and treatment facility. Instead, sewage and waste waters from the naval base and air station industrial complexes are discharged directly into Subic Bay. Only 25 percent of the 5 million gallons of sewage generated daily is treated.

“Lead and other heavy metals from the ship repair facility’s sandblasting site drain directly into the bay or are buried in the landfill. Neither procedure complies with U.S. standards, which require that lead and heavy metals be handled and disposed of as hazardous waste.

“The Subic Bay Navy Facility’s power plant contains unknown amounts of polychorinated biphenyl (PCB) and emits untreated pollutants directly into the air. No testing has been performed to analyze the content of emissions, but officials stated that air emissions would not meet U.S. clean air standards.

“At the time of our review, the Air Force and Navy had no plans to clean up these sites. However, the Navy plans to build a sewage treatment plant.” (Emphasis supplied.)

The committee note that the information disclosed by the U.S. General Accounting Report on contaminated sites was confirmed by separate reports, such as (a) the U.S. Navy’s “Potential Restoration Sites on Board the U.S. Facility, Subic Bay,” dated October 1992, which identified 28 potentially contaminated sites in Subic and 28 potentially contaminated training areas and ranges utilized by naval forces; (b) the “Subic Bay Environmental Risk Assessment and Investigation” conducted by the WHO on Subic; (c) the “Environmental and Health Impact Report on Known and Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines” by a team composed of Paul Bloom, Ph.D., Alex Carlos, M.S., Jorge Emmanuel, Ph.D., and Theodore Schettler, M.D.; and (d) the “Environmental Baseline Study/Soil and Water Baseline Study” on Clark by Weston International. Even the Woodward-Clyde International’s “Environmental Baseline Study/Environmental Quality Study” on Subic, whose conclusions was questioned by other experts, recommended remediation in seven specific contaminated sites and further investigation and possible investigation in 13 areas.

In 1993, the U.S. released Department of Defense documents to the Philippine government identifying potential restoration sites at both sides. Basing its assessment on the review of these documents, the Environmental and Health Impact Report on Known and Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines written by a team composed of Paul Bloom, Jorge Emmanuel, et al., identified the known contaminated sites in Clark to include the Mechanical Room Building 7509; Supply Storage Yard adjacent to the Defense Reutilization and Marketing Office (DRMO); Clark Subic pipeline; Philrock Products Compound Building 18; Asbestos landfill. The known contaminated sites in Subic included the following: Public Works Center (Sanitary landfill; Power Plant Building 1800; Fleet Mooring/Sandblasting Yard); U.S. Naval Station (Old dumpsite; Underground Storage Tanks (UST) Structure 1459 Navy Exchange Taxi Compound); Ship Repair Facility (Sandblasting facility and causeway; Foundry Shop Building 30); Naval Supply Depot (Tank Farm UST Structure 1758); Naval Magazine (Wood Preservation and Treatment Facility Building 2259); Cubi Point Naval Air Station (Fuel Farm; Firefighting Training/Crash Crew Training Area Tank Structure 8061; Washtrack Holding Tanks Structure Nos. 8415 and 8416; Cubi Power Plant); Other areas (DRMO yard); 12 other potentially contaminated on-site areas and five off-site areas.

The Environmental and Health Impact Report’s review of U.S. Department of Defense documents is extensively quoted hereunder.

Based on an analysis of the operations performed at Subic, including reports of spills or improper practices during the last 15 years, the U.S. Navy identified sites believed to be potentially contaminated with hazardous waste. Sites were classified into known contaminated sites and potentially contaminated sites. Known contaminated sites are those (a) a history of spills, dumping, or burying of toxic materials has been documented or reported; (b) remedial actions were admittedly inadequate or never conducted; and (c) the nature of the hazardous substances site conditions, and any visual observations indicate an existing toxic contamination problem. Potentially contaminated sites are those that have a history of improper toxic waste management practices, high chemical use and storage, generation of large quantities of hazardous waste, or reported violations or non-conformance to hazardous materials management standards./4

Notes: Asbestos fragments into microscopic mineral fibers which, when inhaled, are known to be a cause of fatal lung cancer and mesothelioma as well as asbestosis and pleural disease. Of these illnesses, mesothelioma may result from small exposures, after a latency of 20-30 years. Ingestion of asbestos may also cause gastrointestinal cancer. Any digging or accidental disturbances of the soil resulting in the release of the asbestos fibers pose a health risk to workers and other populations downwind of the landfill. The aerodynamics properties of the asbestos fibers result in the suspension, deposition, resuspension and transport of the toxic fibers to great distances.

Creosote is heavy, flammable oily mixture consisting primarily of phenols and cresols, as well as cresols and other aromatic compounds including polynuclear aromatic hydrocarbons (PAHs). The complex phenols in creosote are insoluble or only slightly soluble in water. Cresols and creosols are slightly soluble, while phenol itself is soluble and highly mobile. One of two creeks cuts across the landfill, passing area D, a probable human carcinogen, causing both cancer and mutations in laboratory animals. It is also listed as a hazardous air pollutant.

Organotins are highly toxic to marine ecosystems, lethal at very low concentrations to certain fish and shellfish species. In water, they hydrolyze into inorganic tin which is much less toxic. Some organotins cause injury to the peripheral nervous system and to brain in humans. Some also cause alternations in the immune system.

There are hundreds of solvents used in military bases and industrial operations. The most common organic solvents include halogenated hydrocarbons such as methylene chloride, 1,1,1,-trichoroethane, trichloroethylene and perchloroethylene; ketones such as methyl ethyl ketone and methyl isobutyl ketone, aromatics such as toluene, alipathic hydrocarbons such as hexane, alcohols such as methanol and isopropanol and glycol ethers. Many of these solvents are volatile. Some , such as the chlorinated solvents, are resistant to degradation in soil and water and can contaminate groundwater; others such as trichloroethylene, decompose in soil to form toxic chemicals. Human exposure pathways, therefore, include both inhalation and ingestion as well as skin absorption from direct contact. Health effects due to chronic exposure to solvents vary considerably depending on the solvent. Some solvents are irritants, others can damage the skin, liver, blood, central nervous system, lungs and/or kidneys. Commonly used chlorinated solvents, such as benzene, trichloroethylene, perchloroethylene, and methylene chloride, are known to cause or are suspected of causing cancer. Some solvents such as glycol ethers, have been found to cause birth defects in animals and infertility in men. Others are suspected of causing birth defects in humans. Some, at low exposure levels, cause subtle impairment of reaction time, psychomotor performance, and cognitive abilities. In certain cases, the exposure to more than one solvent can increase toxic effects due to a synergistic reaction; an example is exposure to both methyl ethyl and carbon tetrachloride.

2. Subic Power Plant (Building 1800)

Sources: Reported spills due to overflows of fuel tanks and oil-water separators; reported spills during fuel transfer operations, use of PCB-contaminated equipment and temporary storage of PCBs, used oils and solvents; photographic evidence of oil and solvent spills.

Contaminants: Petroleum hydrocarbons, solvents, and possibly PCBs.

Clean-up Actions: Most, but not all, of spills were reportedly cleaned-up; no documentation of the results of the clean-up activities

3. Fleet Mooring/Sandblasting Yard

Sources: Over 20 years of sandblasting operations; sandblasting wastes used to backfill a section of the site

Notes: Contaminants may have leached out into the nearby bay. Chromium in the form of chromates could be toxic to plants. Of the different states of chromium VI or hexavalent chromium is of greatest concern. Chromium VI is mobile in non-flooded soils and is toxic to aquatic life. However, it is readily transformed into the less toxic and less mobile chromium III in flooded soils and bottom sediments. Acute exposures to chromium VI may cause kidney disorders. Chromic, low-dose exposures cause dermatitis, damage to the respiratory tract, and lung cancer. It has been shown to damage genetic material and reproductive problems in laboratory animals.

B. U.S. Naval Base

1. Old Dumpsite

Sources: Dumping of industrial wastes, cans of paint and oils since the 1950s; areas where no plants and weeds can grow (an indicator of possible toxic contamination); photographic evidence on non-biodegradable items (plastics and tires) coming out of the ground.

Contaminants: Heavy metals such as lead and chromates, petroleum hydrocarbons and possibly solvents.

Clean-up Actions: None

Notes: The old dumpsite is immedistely adjacent to the OSIR basin. Groundwater is most probably very shallow and any toxic substances could be leaching out into the basin.

Although lead is slightly soluble in water, it is not very mobile especially at pH values near neutral and only somewhat mobile (still much less so than cadmium) in very acidic soils. However, lead contaminated soil particles may be carried into the basin through erosion and other processes. In general, exposures to lead may occur through ingestion of contaminated water, food, or soil, or by inhalation of lead particles or contaminated dusts. Lead accumulates in bone so that blood lead levels are a poor indicator of total body burden of the metal. In adults, moderate elevations of lead levels cause disorders of the nervous system (neuropathies), blood cells (anemia), kidneys (tubular damage), and reproductive system (infertility in men). Lead readily crosses the placenta, and low lead levels in pregnant women cause developmental effects in the fetus including impaired nervous system development, hearing and growth. Infants and children with only slight elevations in lead levels demonstrate IQ deficiencies. Overt mental retardation occurs at higher levels.

2. Underground Storage Tanks (UST) Structure No. 1459, Navy

Exchange Taxi Compound

Sources: Several reported spills of diesel fuel; underground storage tank suspected of leaking after the earthquakes in 1991; as of August and October 1992, area around the tank was still saturated with fuel

Contaminants: Petroleum hydrocarbons and possible solvents and metals

Clean-up Actions: None

Notes: There are apparently two 5,000-gallon underground storage tanks (USTs) installed 20 years ago at the site.

C. Ship Repair Facility

The ship repair facility as a whole is an area of concern. The team of scientists was informed during a site visit that chlorinated solvents and non-chlorinated solvent such as toluene were used in many operations and dumped into the bay for many years until the 1980s. Generally heavier than seawater, chlorinated solvents would be a particular concern in the bay sediments. Bottom sediments are expected to be heavily contaminated with lead, tin and other metals. The following are specific sites mentioned in the U.S. Department of Defense reports:

Sandblasting Facility and Causeway

Sources: Extensive sandblasting or organotin paints since the 1960s; disposal of organotin-contaminated wastewater into Subic Bay without treatment since 1986; area still saturated with organotin-contaminated waste; photographic evidence of blasting grit around the causeway area

Contaminants: Tributyl tin (TBT) oxide and other organotins; possibly lead, barium, chromates and other paint-based contaminants; also fuel and solvents

Clean-up Actions: Project to treat organotin-contaminated wastewater was never implemented

Notes: The team of scientists was told that chlorinated solvents (in particular, carbon tetrachloride and possibly trichloroethylene) were dumped into Subic Bay. Chlorinated solvents are more resistant to biodegradation than non-chlorinated hydrocarbons. They may form dense non-aqueous phase liquids in the groundwater or accumulate in the sediments in surface water. Carbon tetrachloride can percolate through the soil, contaminate groundwater and surface water or contaminate air where it takes 50 years to break down. Chronic exposures through inhalation or ingestion can affect the liver, kidneys and nervous system; it is a possible human carcinogen. Trichloroethylene, like carbon tetrachloride, can also contaminate the groundwater and bay, can affect the liver and nervous system, and has been found to cause liver and lung cancers as well as reproductive effects in animals. Tricholoethylene in the soil and groundwater can take years to degrade, forming vinyl chloride (a known human carcinogen) and vinylidene chloride (a suspected carcinogen) as by products.

2. Foundry Shop, Building 30

Sources: Explosion of PCB capacitor containing 385,000 ppm PCBs; other PCB spills reported; tests in 1989 confirmed PCB contamination on all electrical control panels of the furnaces; photographic evidence of spills on the wooden flooring and panels; foundry shop was used for melting metals.

Contaminants: PCBs; possibly metals such as lead cadmium, etc.

Clean-up Actions: Not reported

Notes: PCBs (Polychlorinated biphenyls) are a class of compounds that are known to be highly sorbed in soil and insoluble water. Since PCBs are generally resistant to degradation, they are very persistent in the environment. Moreover, PCBs are bioconcentrated from soils or sediments by organisms and move up the food chain, thereby posing a health hazard. PCBs interfere with reproduction in wildlife and experimental animals. Children born to women who consume fish with elevated PCB content before and during pregnancy show decreased birth weight, reduced head circumference, and tend to deliver prematurely. Even at four years of age, children show deficiencies in weight gain and decreased performance in some intellectual testing. PCBs have estrogenic activity, suppress the immune system in animal and humans, and induce liver enzymes. Chronic exposures causes skin disorders. PCBs promote tumors in experimental animals and may be carcinogenic in humans. Because PCBs are fat soluble, maternal milk represents a continual exposure pathway for nursing infants during critically important periods of development.

Because of foundry operations, contaminations with toxic metals such as lead, and cadmium may also be possible. Cadmium metal tends to adhere to ash, dust, and soil particles and can be released into the atmosphere. Cadmium is relatively mobile. Dust particles containing cadmium can also

be washed into storm drains and eventually reach the bay where it is sorbed in sediments from which it can enter the aquatic food chain. Cadmium can also be sorbed in clay particles in the soil where it can be accumulated by vegetation. Cadmium, when inhaled at high concentrations, has been associated with lung cancer, while at lower concentrations, chronic exposures may result in lung diseases. Moreover chronic exposures may also result in kidney and liver disorders, heart disease anemia, brittle bone and immunological effects.

In addition, other toxic metals include nickel, arsenic, mercury, chromium, serelium, beryllium, etc. Toxic effects due to long term exposures to toxicmetals at low concentrations vary. Lead, methyl mercury, organotin, and arsenic affect the nervous system. Various metals such as chromium, selenium, cadmium, nickel, and arsenic, damage the liver, kidney and skin. Lead, cadmium, chromium, selenium, nickel and arsenic have been found to produce mutations in human and other cells in laboratory tests. Arsenic, beryllium, cadmium. chromium, and nickel dust are known to cause cancer.

D. Naval Supply Depot

1. Tank Farm, area around UST Structure No. 1785

Sources: 67,000 gallons of fuels spilled after Mt. Pinatubo eruption, of which only 1,800 gallons were recovered; fuel was seen coming out of the base of the tank; as of August and September 1992, fuel was still coming out of the tank.

Contaminants: Petroleum hydrocarbon components of the fuel

Clean-up Actions: A trench was dug at the base of the tank from which fuel was collected; no corrective actions were taken.

E. Naval Magazine

1. Wood Preservation and Treatment Facility, Building 2259

Sources: Toxic sludges from the pentachlorophenol (PCP) dip tank were dumped into the ground from the 1960s until around 1984; approximately 55 gallons of toxic sludge were dumped annually.

Contaminants: Pentachlorophenol

Clean-up Actions: None

Notes:Pentachlorophenol or PCP is somewhat resistant to degradation and relatively insoluble in water. Chronic exposure to pentachlorophenol can lead to liver and kidney damage. It is a skin irritant and, at high concentrations, can also affect the lungs, blood, central nervous system, and gastrointestinal system. Pentachlorophenol can be lethal by inhalation at high doses. Many commercial pentachlorophenol products have been found to be contaminated with dibenzodioxins and dibenzofurans which are also highly toxic and persistent in the environment. They are likely to be found wherever pentachlorophenol has been discarded. These compounds are known to cause reproductive and developmental abnormalities, altered immune system, and may be human carcinogens.

F. Cubi Point Naval Air Station

1. Fuel Farm Area

Sources: Several reported spill incidents; fresh fuel oozed out of an excavation pit where more than 4,000 gallons were recovered; fuel still found at another excavation pit 100 feet away; as of October 1992, fuel was still being pumped out of the pit

Contaminants: AVGAS and JP5, according to laboratory analysis

Clean-up Actions: Area was monitored but no corrective action taken

Notes: Aviation gasoline (AVGAS) and jet fuels (such as the U.S. Navy’s JP5) are light petroleum distillates. AVGAS is a blend of refined hydrocarbons derived from crude petroleum and natural gasoline, and synthetic hydrocarbons. JP5 is kerosene used for jet fuel; its components are mainly paraffins and napthenes in the C10 to C14 range, with aromatics comprising up to 15 % of the fuel. Gasoline also contains a number of additives, including lead or substitute anti-knock compounds, anti-oxidants, metal deactivators, corrosion inhibitors, lubricants, and dyes. One additive found commonly at contaminated sites is ethylene dibromide, a known spermatotoxin and carcinogen.

Most petroleum contain varying amounts of aromatics, in particular, the BTEX compounds (benzene, toluene, ethyl benzene, and xylenes). Toluene, ethyl benzene and xylenes share many of the same physical characteristics as benzene. Chronic exposure to these aromatics compounds could result in liver and kidney damage, and could affect fetal development in the case of pregnant women. The most toxic of the four is benzene which, when released from leaking underground storage tanks, percolate through the soil into the groundwater where it forms a light aqueus phase liquid. While it can be broken down by microorganisms in soil and aquatic sediments, benzene is a significant contaminant in groundwater where it is not easily degraded. Chronic exposure to benzene can result in aplastic anemia, bone marrow changes and other effects on the blood, and it has also been linked to chromosomal aberrations, Benzene, classified as a known carcinogen, causes leukemia.

Sources: Weekend and bi-weekly training during which accumulated firefighting chemicals were drained into a creek and into the bay; cracks discovered in August 1992 allowed oils and firefighting chemicals to seep through the pavement and into the ground; some oils used for burning were possibly contaminated with PCBs, no vegetation grows within a 50-foot radius

Contaminants: Solvents and oils, AFFF, heavy metals, possibly PCBs

Clean-up Actions: Mock airplane removed; no corrective action taken

Notes:Aqueous film forming foam or AFFF, used for aircraft crash fire control, is a low viscosity synthetic fluorochemical that forms air foams and a water solution film on surface of flammable liquids. AFFF is a derivative of alkyl perfluoro-sulfonamide and may also contain a high molecular weight polymer to retard breakdown of its surface properties.

3. Washrack Holding Tanks, Structure No. 8415 and 8416

Sources: Oil-water separator drains into creek and bay, holding tanks were found to contain toxic sludge in 1987; the waste sludge corroded the seals of a pump during attempts to pump waste out in 1989; inspectors had cited this operation three times for improper segregation and disposal of waste.

Clean-up Actions: Separator was apparently cleaned up in 1992 with the removal of accumulated sludge, but no other corrective action taken

4. Cubi Power Plant

Sources: Reported spills and temporary storage of PCBs, used oils and 0solvents

Contaminants: Petroleum hydrocarbons, solvents and possibly PCBs

Clean-up Actions: Most, but not all, of spills were reportedly cleaned-up; no documentation of the results of the clean-up activities

G. Other Areas

1. Defense reutilization and Marketing Office (DRMO) Yard

Sources: Reported spill incidents; hazardous waste was stored in an open yard exposed to the elements causing deterioration of hazardous waste containers; storage facility was cited for not conforming to standards

Contaminants: PCBs, acids, oil, solvents

Clean-up Actions: None

Notes: Cement slab remains where the DRMO building used to stand before it was destroyed by Mt. Pinatubo ashfall. DRMO Yard is a flood plain and runoff drains directly into adjacent bay. During a site visit, groundwater was measured (approximately 3 feet below ground surface) in open boreholes in the yard. It is probable that spill incidents especially in unpaved areas may have impacted the sandy soils and the shallow groundwater.

CLARK AIR BASE

KNOWN CONTAMINATED SITES/6

1. Mechanical Room, Building 7509

Sources: Transformer in this building was involved in a fire that caused PCB contamination of the transformer, walls, and ceilings in the transformer room. Significant concentrations of PCB (338,001 ug/100cm2) were detected in wipe samples.

Contaminants: PCB

2. Supply Storage Yard Adjacent to the DRMO

Sources: Leaking 55-gallon drums containing solvents, acids, surfactants, and possibly paint wastes were observed two years ago in this area and many of the containers were corroding.

Contaminants: Petroleum Hydrocarbons

3. Clark-Subic POL (Petroleum, oil and lubricants) pipeline

Sources: Spill incidents have been reported along the Clark-Subic POL pipeline by the Pasig and Abacan River crossings

Contaminants: Petroleum hydrocarbons

Clean-up Action: None documented

4. Phil Rock Products Compound, Building 18

Sources: 110 gallons of hydrotor 400 oil (Petron) used as fuel spilled on October 13, 1990.

Contaminants: Petroleum hydrocarbons

Clean-up Actions: Contaminated soils were excavated and let dry under the sun. Soil samples were taken but no results were included in the report. Information on the final disposition of contaminated soils was not provided.

5. Asbestos Landfill

Sources:

project of the base hospital, the landfill was located in the of an antenna ray. The area was divided into 50 square foot plots with concrete monuments placed at the corners of each plot. Records regarding the location and amount of asbestos buried exist.

Contamination: Asbestos

Clean-up Action: None

Notwithstanding an assertion that the U.S. removed all containers of hazardous wastes and materials in the former military bases/7, the Committee concur with the authors of the Environmental and Health Impact Report that there is substantial environmental contamination at both Clark and Subic. It is evident from a review of the documents released by the U.S. Department of Defense that (1) the U.S. Government had knowledge of the existence and location of known and potential contaminated sites; and (2) despite such knowledge no comprehensive cleanup of the contaminated sites was done by the U.S. Government.

The Committee agree with the authors of the report that the “contamination has significant and urgent adverse ecological, human health, and economic implications for the surrounding communities and x x x for the Philippines generally.” In the absence of a thorough cleanup of the contaminated sites, it cannot be seriously refuted that the Philippines sustained and continues to sustain substantial environmental damage.

B. THE U.S. GOVERNMENT HAD EFFECTIVE CONTROL OVER THE ACTIVITIES AND OPERATIONS WITHIN THE MILITARY BASES

Under Article III of the 1947 Military Bases Agreement, the U.S. had the “rights, power and authority within the bases which are necessary for establishment, use, operation and defense thereof or appropriate for the control thereof and all the rights, power and authority within the limits of territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access, or appropriate for their control.” Such rights, power and authority, included, among others, the following:

(a) to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases;

(b) to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases;

(c) to control (including to prohibit) in so far as may be required for efficient operation and safety of the bases, and within the limits of military necessity, anchorages, moorings, landings, takeoffs, movements and operation of ships and waterborne craft, aircraft, and other vehicles on water, in the air, or on land comprising or in the vicinity of the bases;

(d) the right to acquire, as may be agreed between the two governments, such rights of way, and to construct thereon, as may be required for military purposes, wire and radio communications facilities, including submarine and subterranean cables, pie lines and spur tracks from railroads to bases, and the right, as may be agreed upon between the Governments to construct the necessary facilities;

(e) to construct, install, maintain and employ on any base any type of facilities, weapons, substance, device, vessel or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological systems, aerial and water navigational lights, radio and radar apparatus and electronic devices, of any desired power, type or emission and frequency.

The U.S. agreed that in the exercise of these rights, power and authority, the powers granted it will not be used “unreasonably.”

In January 1979, The “Arrangements Regarding Delineation of the United States Facilities at Clark Air Base and Subic Naval Base; Powers and Responsibilities of the Philippine Base Commanders and Related Powers and Responsibilities of the United States Facility Commanders; and the Tabones Training Complex” was signed, amending the 1947 Military Bases Agreement. While the 1979 amendment provided that the powers and responsibilities of the Philippine base commanders and the U.S. Facility commanders would be guided by full respect for Philippine sovereignty, it also assured unhampered U.S. military operations involving its forces in the Philippines. Thus, it was agreed, “the United States shall have the use of certain facilities and areas within the bases and shall have effective command and control over such facilities and over United States personnel, employees, equipment and material.”/8

Even as the United States reaffirmed that Philippine sovereignty extended over the bases and that each base was under the command of a Philippine Base Commander,/9 certain areas were reserved for the exclusive use of the U.S. Armed Forces and the U.S. Navy. For instance, a portion of Subic Bay waters was reserved for U.S. forces’ use; and within the depicted reserved waters, the U.S. Commander was authorized to control movement and operation of ships and waterborne craft and to perform other activities that may be appropriate for the unhampered operation of U.S. forces. Moreover, the Philippine government assured unhampered access to, egress from, movement within and operational use of the water of Subic Bay by U.S. government vessels and vessels chartered or engaged on behalf of the United States./10 It will be noted that facilities and installations identified as potential sources of pollution, such as the communication facilities at Clark, the Naval Supply Depot and the industrial area at Subic, were part of the areas used for exclusive American use./11

From the foregoing, it cannot be denied that the United States exercised effective control of the activities within the military bases.

C. THE ACTIVITIES CONDUCTED BY THE U.S. WITHIN THE

FORMER MILITARY BASES CAUSED ENVIRONMENTAL

HARM

Inasmuch as the U.S. had effective control of the territory and all the activities conducted within the bases, the environmental harm within Subic and Clark can only be attributed to the activities conducted by the U.S. within the bases.

Again, a review of the Department of Defense documents released by the United States to the Philippine government would provide evidence that the U.S. carried out activities, operations and practices within the military bases which caused environmental harm. As stated, known contaminated sites in Subic Naval Base and Clark Field Air Base were identified based on an analysis of the operations performed by the U.S. forces at the military bases and on documented and reported history of spills, dumping burying toxic materials and other improper practices, while potentially contaminated sites were identified by examining the history of improper toxic waste management practices, high chemical use and storage, generation of large quantities of hazardous waste, or reported violations or non-conformance to hazardous materials management standards./12

The U.S. General Accounting Report noted some of these improper practices and deficiencies as follows: underground storage tanks had no leak detection equipment; firefighting facilities lacked drainage systems; the Subic Bay Naval Facility’s power plant contained unknown amounts of polychlorinated biphenyl (PCB) and emitted untreated pollutants directly into the air; the Subic Bay Naval Facility had no complete sanitary sewer system and treatment facility; and only 25 percent of the five million gallons of sewage generated daily was treated. As a result, thereof, the fuel and chemicals used in fire-fighting exercises seeped into the soil and water table, and the overflow went directly into Subic Bay. Sewage and process waste water from the naval base and air station industrial complexes were discharged directly into Subic Bay, while lead and other metals from the ship repair facility’s sandblasting site either drained directly into the bay or were buried in the landfill./13

The U.S. General Accounting Office Report admitted that at the time of the review, the U.S. Air Force and the U.S. Navy had no plans to clean up the contaminated sites.

From the foregoing, it is patent from the documents released by the U.S. Department of Defense that (1) the United States had knowledge of or had the means of knowing that its agents were carrying out such hazardous activities, operations and improper waste management practices within the military bases under its effective control; and that the U.S. had knowledge of or had the means of knowing that the activities undertaken within the military bases involved appreciable or foreseeable risk of causing environmental harm; and (3) lastly, that notwithstanding such knowledge, the United States government had no visible plans of repairing or compensating for the environmental harm.

D. WHETHER THE U.S. CAN BE HELD LIABLE UNDER THE 1947 MILITARY BASES AGREEMENT, AS AMENDED

The U.S., in the General Accounting report, does not deny the contamination of site within the former bases, such as fire-fighting training facilities and underground storage tanks. It denies, however, liability of environmental damage under the Military Bases Agreement. This is evident from the letter dated June 24, 1999 written by U.S. Deputy Undersecretary of Defense Sherri Goodman to Senator Legarda-Leviste alleging that the United States Government has no legal obligation to clean up the toxic waste in the former U.S. bases in the Philippines. The letter states:

“The United States used military installations in the Philippines under the1947 Military Bases Agreement. Neither that Agreement, nor major amendments to it, required the United States to conduct any environmental restoration when the Agreement terminated. Your government expressly agreed to waive any right to demand cleanup in return for the agreement of the United States not to seek compensation for the value of the substantial improvements we left behind. You can find this language in the1988 Amendment. It reads as follows:

‘The United States is not obliged to turn over the bases to the Philippines at the expiration of this Agreement or the earlier relinquishment of any bases in the condition in which they were at the time of their occupation, nor is the Philippine obliged to make any compensation to the United States for the improvements in the bases or for the non-removable buildings or structures left thereon, the right of which shall revert to the Philippines upon the termination of this Agreement or the earlier relinquishment by the United States of the bases where the buildings or structures have been built.’

“Nothing in international law alters the rights established by the Military Bases Agreement. Consequently, the United States has no further obligation to undertake restoration activities at its former installations in the Philippines. In the absence of legal authority, our laws do not permit us to spend funds for the purposes you have requested.”

Commenting on the letter of undersecretary Goodman, the Philippine Department of Foreign Affairs stated in part:

“The Department of Foreign Affairs is aware of the U.S. Government’s position that it is under no legal obligation to clean-up suspected contaminated sites in the former U.S. military bases of Subic and Clark. x x x

“Subsequent amendments made on Article XVII of the 1947 Military Bases Agreement to mean that the Philippine Government “expressly agreed” to waive its rights to the ownership, removal and disposition of improvement made by the United States in the former U.S. military bases. The Philippine Government did not at any time waive ant right to demand clean-up of the former U.S. bases in exchange for improvements made by the U.S. Government in the premises of the former U.S. bases. It must be noted that when the 1947 Military Bases Agreement was signed, there was no knowledge or experience at the time of the adverse effects of hazardous wastes on the life and health of humans.”/14

The pertinent provisions of the Agreement and the amendments thereto are as follows:

Military Bases Agreement

1947

Manglapus-Schultz

Memorandum of

Agreement

October 17, 1988

ARTICLE XVIII

REMOVAL OF

IMPROVEMENTS

1. It is mutually agreed that the United States shall have the right to remove or dispose of any or all removable improvements, equipment or facilities located at or on any base and paid for with funds of the United States. No export tax shall be charged on any material or equipment so removed from the Philippines.

ARTICLE VII

OWNERSHIP AND

DISPOSITION OF

BUILDINGS, STRUCTURES

AND OTHER PROPERTY

1. It is mutually agreed that the United States shall have the right to remove or dispose of any or all removable improvements, equipment or facilities located at or on any base paid for with funds of the United States. No export tax shall be charged on any material or equipment so removed from the Philippines. The Government of the Philippines shall have the first option to acquire, upon the mutually agreed terms, such removable United States Government property within the bases as the United States Government determines to be excess property available for disposition in the Philippines.

1. All buildings and structures which are erected by the United States in the bases shall be the property of the United States and may be removed by it before the expiration of this Agreement or the earlier relinquishment of the base on which the structures are situated. There shall be no obligation on the part of the Philippines or of the United States to rebuild or repair any destruction or damage inflicted from any cause whatsoever on any of the said buildings or structures owned or used by the United States in the bases. The United States is not obliged to turn over the bases in the condition in which they were at the time of their occupation, nor is the Philippines obliged to make any compensation to the United States for the improvements made in the bases or for the buildings or structures left thereon, all of which shall become the property of the Philippines upon termination of the Agreement or the earlier relinquishment by the United States of the bases where the structure have been built.

2. Non-removable buildings and structures within the bases, including essential utility systems such as energy and water production and distribution systems and heating and air conditioning systems that are an integral part of such buildings and structures, are the property of the Government of the Philippines, and shall be so registered. The United States shall, however, have the right to full use, in accordance with this Agreement, of such non-removable buildings and structures within the United States Facilities at the bases including the right to repair, alter or, when necessary for reasons of safety or new construction, to demolish them. There shall be no obligation on the part of the United States or of the Philippines to rebuild or repair any destruction or damage inflicted from any cause whatsoever on any of the non-removable buildings or structures used by the United States in the bases. The United States is not obliged to turn over the bases to the Philippines at the expiration of this Agreement or the earlier relinquishment of any bases in the condition in which they were at the time of their occupation, nor is the Philippines obliged to make any compensation to the United States of the bases where the structures have been built.

3. Upon the final termination of the use by the Government of the United States of the Facilities or earlier relinquishment, the United States and the Republic of the Philippines will take appropriate measures as they shall jointly determine to ensure a

smooth transition with respect to custody and control of the Facilities and in order to minimize any disruptive effects of such termination.

The question, therefore, is whether this clause, “The United States is not obligated to turn over the bases to the Philippines at the expiration of this Agreement or the earlier relinquishment of any bases in the condition in which they were at the time of their occupation.” can be interpreted to grant the United States blanket authority to inflict significant blanket authority to inflict significant environmental damage within or in the vicinity of the bases by wanton acts of dumping contaminants, burying of toxic materials and other improper waste management practices, thereby causing enormous health hazards to residents within the area. Does Article XVIII of the Military Bases Agreement (on Removal of Improvements), as amended by Article VII (on Ownership and Disposition of Buildings, Structures and Other Property) of the Manglapus-Schultz Memorandum of Agreement, give the United States the license to commit acts of destruction of the environment or of tort in exchange for non-removable buildings and structures?

The committee are not inclined to so hold, considering that under Article III of the 1947 Military Bases Agreement, the United States agreed not to exercise its rights, power and authority “unreasonably.” As correctly noted in House Resolution No. 75 adopted by the Philippine House of Representatives on September 21, 1999, the Agreement, like any other valid contracts, contemplated only reasonable activities and that the indiscriminate and negligent disposal of toxic and hazardous wastes in any area not safely meant therefor is an illegal and unreasonable undertaking. Nothing in the 1947 Military Bases Agreement of the amendments thereto authorized the United States to unduly pollute the territorial waters with contaminants, destroy the environment by dumping toxic wastes within the bases and endanger the lives of residents in the vicinity. The tortious act of inflicting damage, whether to the environment or to the lives of the people of the contracting State, could not have been authorized or contemplated under the Military Bases Agreement or any of its amendments, or could toxic tort/15 injuring Filipino citizens have been sanctioned by the Philippines in exchange for non-removable building or structures. To so interpret the Agreement would reduce its provisions to an absurdity and violate a fundamental canon of statutory construction that any interpretation of a provision that will lead to an absurdity or irrationality should be avoided at all costs.

“The usual canons of statutory construction are employed in the interpretation of treaties. Thus, to mention a few, specific provisions must be read in the light of the whole instrument and especially of the purposes of the treaty. Words used to be given their natural meaning unless a technical sense was intended, and, when they have different meanings in the contracting states, should be interpreted in accordance with the usage of the state where they are supposed to take effect. x x x At all events, an interpretation that will lead to an absurdity is to be avoided and a more rational result preferred.”/16

The Committees find the Philippine Department of Foreign Affairs’ interpretation to the effect that Article VII of the 1988 Manglapus-Schultz Memorandum of Agreement amending Article XVIII of the 1947 Military Bases Agreement, refers to the ownership and disposition of buildings, structures and improvements at the expiration of the Agreement or the earlier relinquishment of the bases, more rational and in keeping with the statutory construction rule that a specific provision must not be taken in isolation but read in the light of the whole instrument, including the title of the article to which it refers. Considering the undertaking of the United states to its powers, rights and authority under the Agreement reasonable, the Committees also hold that the provision quoted above does not bar the Philippines from protecting its citizens who have suffered damage or injury as a result of toxic tort or wanton contamination in Subic and Clark.

In any case, conflicts in the interpretation of treaties or international agreements may be resolved by agreement of the parties themselves or by an international body./17 In view of the differences in opinion by the United States and the Philippines in the interpretation of Article VII on Ownership and Disposition of Buildings, Structures and Other Property under the Manglapus-Schultz 1988 Memorandum of Agreement, amending Article XVIII on Removal of Improvements under the 1947 Military Bases Agreement, the Committees submit that the question whether the United States can be held liable under the 1947 Military Bases Agreement and amendments thereto can best be resolved by an international body.

E. WHETHER THE U.S. CAN BE HELD LIABLE UNDER CUSTOMARY INTERNATIONAL LAW

As in the foregoing paragraph, an international body can best resolve the question whether the United States can be held liable under customary international law. Under generally accepted principles of international law, particularly the maxim of sic utere jure tuo ut alienum non laedas,/18 the United States had the duty to ensure that the activities conducted within the military bases and under its effective control were carried out in such a manner as not to cause environmental harm to the Philippines and its citizens. If The activities conducted within the military bases and under the United States’ effective control caused harm, then the United States has the corresponding duty to repair or compensate such damage.

It is interesting to note the U.S. position that nothing in international law alters the rights established by the Military Bases Agreement and that the United states has no further obligation to undertake restoration activities at the former military bases. The Committees take exception to this position, particularly in the light of the discussion that the provision in the 1947 Military bases Agreement or its amendments thereto granted the United Sates the right to pollute the territorial waters of the Philippines with contaminants, dump toxic wastes and endanger the lives of the residents in the vicinity. No article or section in the 1947 Military Bases Agreement or in its amendments referred to any right or authority granted to the United States to inflict damage to the environment or to commit toxic tort with impunity. In fact, it was only the Supplementary Agreement Number Two to the 1991 Treaty of Friendship, Cooperation and Security Between the Government of the Republic of the Philippines and the Government of the United States of America: Agreement on Installations and Military Operating Procedures, which the Philippine Senate overwhelmingly rejected, that contained an article specifically referring to the environment./19 The absence in the 1947 Military Bases Agreement or its amendments of any provision on the environment bolsters the interpretation that the clause, “The United states is not obliged to turn over the bases to the Philippines at the expiration of this Agreement or the earlier relinquishment of any bases in the condition in which they were at the time of their occupation,” referred only to the ownership and disposition of buildings, structures and other properties at the expiration of the Agreement and was not meant as a license for the American forces to commit wrongful or negligent acts of environmental destruction.

In the absence of any specific provision under the 1947 Military Bases Agreement, as amended, granting the United States the right to dispose of hazardous or toxic wastes in Subic and Clark as it pleases, the general principles of international law will apply. And under the customary principle of international law, sic utere jure tuo ut alienum non laedas, a State is responsible for environmental damage to another State. The protection of the environment is a universal duty and the obligation to prevent environmental damage is well established by custom./20

The principle of sic utere tuo ut alienum non laedas which holds a State liable for environmental damage to another evolved from landmark cases and arbitral decisions in international law, such as the Trail Smelter Arbitration award/21 and the Corfu Channel Case/22. In the Trail Smelter Arbitration case, the United States filed a claim against Canada for air pollution-causing fumes coming from a privately owned smelter plant in Trail, British Columbia. Applying the general principles of international law, particularly the sic utere jure tuo principle, the Special Arbitral Tribunal held that States are obliged to regulate activities with potentially harmful effects to other States and that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequences and the injury is established by clear and convincing evidence.” After mandating regulatory controls for Canada, the Tribunal held Canada liable for the air pollution caused by a private company within its territory and to make reparations if any harm occurred in the future even from wholly lawful activities.

In the Corfu Channel case, the Corfu Channel. located between Corfu Island and Albania, was considered free of mines. The British Government claimed the right of passage through the channel while the Albanian Government opined that the foreign ships’ passage required prior Albanian permission. In October 1946 two British warships struck mines in the North Corfu Strait and were heavily damaged with deaths and injuries among the naval personnel. Britain unilaterally undertook minesweeping operations in the channel after the incident amid protests from Albania. The United States Security Council in a resolution recommended that the parties should refer the dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court, which resolution was accepted by both States. In 1947, the United Kingdom unilaterally instituted proceedings before the International Court of Justice, with protests from Albania against the unilateral British application./23

Noting that it was improbable for Albania to have been unaware of the existence of the minefield recently laid in its territorial waters, the International Court of Justice declared that Albania was presumed to know of the minefield’s existence and was obliged to notify the ships of the imminent danger from the minefield. The Court then held Albania liable under international law for the explosions and for the loss of human lives based on the general and well-recognized principle that each State is obliged “not to allow knowingly its territory to be used for acts contrary to the rights of other states.”

The committees, moreover, note of the following discussion in the paper entitled, Toxic Waste Contamination in Former U.S. Military Bases in the Philippines and the Concept of Sate Responsibility for Damage to the Environment/24 by Department of Environment and Natural Resources Undersecretary Paula Defensor:

“The development of principles applicable to state responsibility for environmental damage eventually led to a global conference to discuss matters relating to the present state and future of the human environment. Thus came about the 1972 Stockholm Conference and as a corollary, the Stockholm Declaration on the Human Environment, the most significant provision of which is Principle 21, which states:

‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own natural resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’

“In addition to Principle 21, there is also Principle 22 which provides that States were to cooperate to further principles regarding liability and compensation to victims of pollution and other environmental damage. It provides:

‘States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction and control of such states to areas beyond their jurisdiction.’

“Principle 22 is a restatement of the judgement in the Trail Smelter case despite little development in the concept of state responsibility for environmental damage in international law. On account, however, of continued reference to and opinio juris on Principle 21 in various fora and international documents, it is now commonly accepted as representing customary international law.

Principle 21 of the Stockholm Declaration was later repeated and expanded during the Conference on Environment and Development (UNCED) in 1992 which adopted a Declaration known as the Declaration of the UN Conference on Environment and Development or the Rio Declaration. Principle 2 of the Rio Declaration provides:

‘States have in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction.’”

Again, the author reasoned:

“The protection of the doctrine of territorial integrity is the rationale behind the acceptance in state practice of the principle of sic utere tuo, placing the acting state in breach of duty under customary international law. The recognition of this principle in the municipal law of states gives the necessary confirmation and evidence of the juridical character of the principle involved. This principle is reiterated in current applications of international law on the rights and duties of states with respect to state territory. It has little bearing therefore that toxic waste contamination in the former U.S. military bases was caused by the nature of activities conducted by the U.S. military within the bases. It has been established that portions of those sites are no longer reusable due to toxic waste contamination and worse, pose substantial and imminent danger to human life and environment. Under customary international law, the United States fell short of the standard of diligence which other states are expected from it. The degree of diligence varies with the circumstances, and among the factors to be considered are the foreseeability of the risk and the means available to the state. The basis of United States responsibility for the injurious acts of its servicemen stationed in the former military bases is not complicity with the perpetrators, but its failure to perform its international duty to prevent the unlawful act, or failure to observe the diligence to abate the unlawful act. The present state of international law admits of responsibility on the basis of either fault or negligence on the part of the state. The state is liable if it failed to take such measures as, under the circumstance, should normally have been taken to prevent, redress or inflict punishment for the acts causing the damage.”/25 (Emphasis supplied)

Applying the generally accepted principles of international law, particularly of sic utere tuo ut alienum non laedas, one will note that there is sufficient basis for a cause of action under international law against the United States. From a review of the Department of Defense documents released by the United States Government, the veracity of which the United States cannot deny, it is clear that the Philippines sustained significant environmental damage at both Clark Field Air Base and Subic Naval Base and that it is highly improbable for the U.S. Government not to have knowledge of the existence of the contaminated sites in the former military bases over which it had effective control and unhampered access under the 1947 Military Bases Agreement, as amended. The records from the U.S. Department of Defense will confirm that the United States had knowledge or had means of knowing that its agents were carrying out hazardous activities, operations and improper waste management practices within the military bases, and that these activities, operations and practices involved appreciable or foreseeable risk of causing environmental harm. It cannot be argued that the principle of sic utere jure tuo will not apply because Subic and Clark are part of the Philippine territory, for the reason that the U.S. military bases were located in a portion of Philippine territory of which the United States enjoyed exclusive and unimpeded use. It also cannot be disputed, again based on the U.S. Department of Defense documents, that despite such knowledge, the United States Government has not executed a thorough and comprehensive cleanup of the known and potential contaminated sites in Subic and Clark. In fact, reasoning that it is not obligated to turn over the bases in the environmentally safe condition in which they were at the time of their occupation, it continues to deny responsibility for cleanup operations notwithstanding its knowledge of the toxic contamination as manifest in the U.S. General Accounting Report.

IV. COMMITTEES’ CONCLUSIONS AND RECOMMENDATIONS

In summary, the Committee on Natural Resources, Health and Demography, and Foreign Relations find that

xi. Based on the documents released by the U.S. Department of Defense, there is substantial environmental contamination in the former Subic Bay Naval Base and Clark Field Air Base;

xii. It is evident from the documents released by the U.S. Department of Defense that the United States Government has knowledge of the existence and location of known and potential contaminated sites in the former Subic bay Naval Base and Clark Field Air base;

xiii. The hazardous activities, operations and improper waste management practices engaged in by the United States Government within the military bases under its effective control involved appreciable and foreseeable risk of causing environmental harm;

xiv. The United States Government is presumed to know or had the means of knowing that such hazardous activities, operations and improper waste management practices were carried out by the U.S. forces within the military bases over which it had effective control and unhampered access;

xv. The environmental damage caused in Subic and Clark was substantial and had serious adverse ecological, human health and economic implications for the residents within the area and for the Philippines in general.

xvi. The hazardous activities, operations and improper waste management practices engaged in by the United States forces within the military bases caused the environmental damage;

xviii. Inasmuch as the activities conducted within the military bases and under the effective control of the U.S. caused substantial harm, the United States has the corresponding duty to repair and compensate for such damage;

xix. Despite allegations to the effect that the matter of reparation and compensation for toxic contamination is a purely moral question, there is sufficient basis to submit to an international body the legal question concerning the interpretation of Article VII of the 1988 Manglapus-Schultz Memorandum of Agreement amending Article XVIII of the 1947 Military Bases Agreement;

xx. Despite allegations to the effect that the matter of reparation and compensation for toxic contamination is a purely moral question, there is sufficient basis under customary international law for a cause of action against the United States for failing to ensure that the activities conducted by the U.S. forces within the former Subic Bay Naval Base and Clark Field Air Base were carried out in such a manner as not to cause harm to the Philippines and its citizens.

In view of the foregoing, the Committees respectfully recommend that the following measures be taken:

By the Department of Foreign Affairs:

4. To negotiate with the United States Government, the remediation of the areas affected with toxic waste contamination and to initiate preventive and curative measures in order to suppress the rising number of victims of toxic waste contamination in Clark and Subic at the expense of the former. It should be negotiated along the lines of, or pursuant to, Principle 13 of the 1992 Rio Declaration on Environment and Development, of which the United States is a signatory, which provides that “States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction”;

5. To pursue, through diplomatic channels, the creation of a Joint R.P.-U.S. Task Force that will conduct a thorough examination of the extent of toxic waste contamination in Clark and Subic, determine the ill effects thereof to the inhabitants, and implement the much-needed remediation over these areas at the expense of the U.S. Government; and

6. In the event that the United States Government should refuse to effect a remediation on the toxic wastes that the latter left in the former bases of Clark and Subic, to recommend to the Chief executive the filing of a suit, in behalf of the Republic of the Philippines, against the United States of America before the International Court of Justice pursuant to the principles of customary international law for failing to ensure that the activities conducted by the U.S. forces within the former Subic Bay Naval Base and Clark Field Air Base were carried out in such a manner as not to cause harm to the Philippines and its citizens, and for a judicious and authoritative interpretation of Article VII of the 1988 Manglapus-Schultz Memorandum of Agreement amending Article XVIII of the 1947 Military Bases Agreement.

By the Department of Health:

6. To continue its efforts in protecting the people from the ill-effects of toxic waste contamination in Clark and Subic;

7. To continue strengthening the capability of its regional hospital, particularly the Jose Lingad Memorial, in managing, diagnosing, and treatment of patients with illnesses that may be attributed to the toxic waste found in said areas;

8. To continue conducting a comprehensive health impact assessment and epidemiological surveillance studies to validate and monitor the reported illnesses among the residents in the vicinity;

9. To recommend to the Philippine Task Force on Hazardous Wastes, of which DOH is a member, to close than the identified contaminated areas; and

10. To work closely with the Philippine Nuclear Research Institute to determine the levels of radioactivity in the identified areas.

By the Department of Environment and Natural Resources:

5. To enforce thenceforth the provisions of Republic Act No.6969 otherwise known as the “Toxic Substances and Hazardous Nuclear Wastes Control Act” to forestall the repetition of similar subsequent toxic waste contamination throughout the country;

6. To effect the treatment of wells in the affected areas through chlorination or other scientific methods within or which may hereafter fall within the disposal of the agency;

7. To continuously conduct analytic research and study on the toxic waste issue; and

8. To study further the environmental impact assessment on the areas affected by the waste contamination.

Finally, The Senate Committees on Environment and Natural Resources, Health and Demography, and Foreign Relations most respectfully recommend to the Chief Executive

4. Declare a state of environmental calamity in the specific areas affected with toxic waste contamination and direct the relocation of persons still residing within these areas;

5. Submit to an international body, in behalf of the Republic of the Philippines, the question concerning the interpretation of Article VII of the 1988 Manglapus-Schultz Memorandum of Agreement amending Article XVIII of the 1947 Military Bases Agreement in view of the differences in opinion by the United States and the Philippines, and the refusal of the United States to admit liability; and

6. In the event that the United States Government should refuse to affect a remediation on the toxic wastes in the former Subic Naval Base and Clark Field Air Base, to file a suit, in behalf of the Republic of the Philippines, against the United States of America before the International Court of Justice pursuant to the principles of customary international law for failing to ensure that the activities conducted by the U.S. forces within the former military bases were carried out in such a manner as not to cause harm to the Philippines and its citizens.

ENDNOTES

1/ List of Deceased CABCOM evacuees as monitored by Mandy Rivera from a community of 500 families

NAME AGE DATE OF DEATH ILLNESS

1. Alfonso Lapira 59 Jan. 2, 1996 Cancer

2. Aniceta Miranda July 13, 1999 Cancer

3. Dominga Valencis 77 July 5, 1997 Cancer

4. Emerenciana Abalos 78 Apr. 29, 1999 Cancer

5. Ernesto Licup Sept. 9, 1999 Cancer

6. Jesus Mendoza 21 March 4, 1999 Cancer

7. Michelle Lapira Jan. 2, 1999 Cancer

8. Narcisa Cortez 62 July 13, 1998 Cancer

9. Ponciano Ayson 71 Nov. 17, 1997 Cancer

10. Juan Cortez June 1999 Bone Cancer

11. Erlinda Baltazar 47 Dec. 1998 Ovarian Cancer

12. Victoria Morales 86 Dec. 1, 1998 Ovarian Cancer

13. Teofila Escoto Sept. 17, 1997 Cancer of the Uterus

14. Eleonor Borja March 13, 1999 Breast Cancer

15. Milagros Quiambao Oct. 15, 1999 Breast Cancer

16. Erlinda Yanga 1999 Cancer of the Liver

17. Crisel Jane Valencia 6 Feb. 25, 2000 Acute Myelocytic Leukemia

18. Estella Estrada June 1999 Leukemia

19. Alberto Pallasique 69 July 23,1997 Heart Attack

20. Benjamin Yumul 60 Sept. 21, 1998 Heart Attack

21. Dolores Zalta 42 May 18, 1997 Heart Attack

22. Enrico Lumanlan August 1999 Heart Attack

23. Igmedio Escoto 78 July 25, 1998 Heart Attack

24. Incocencio Rodriguez July 9, 1999 Heart Attack

25. Jaquina Escoto 78 Jan. 15, 1998 Heart Attack

26. Jose Castro 58 Feb. 14, 1998 Heart Attack

27. Juanito Rodriguez 64 Oct. 13, 1996 Heart Attack

28. Pablo Manalac 28 Feb. 20, 1999 Heart Attack

29. Soledad Loanzon 40 Dec. 7, 1998 Heart Attack

30. Vicencio Escoto 61 Nov. 3, 1997 Heart Attack

31. Marissa Valencia May 5, 1999 Heart Failure

32. Carmelita Lachica 50 Mar. 9, 1999 Heart Ailment

33. Roberto Ocampo 56 Jan. 1, 1999 Heart Ailment

34. James Munoz 41 July 17, 1998 Heart Ailment

35. Maribeth Valencia 3 Aug. 15, 1995 Heart Ailment

36. Fausta Licup 67 Mar. 26, 1996 Heart Kidney Ailment

37. Nelia Miranda 28 Oct. 14, 1999 Heart, Respiratory Ailment

38. Rosemarie 2000 Heart Failure

39. Fortunato Canlapan 1999 Kidney Disorder

40. Josefa Canlapan 70 1999 Kidney Disorder

41. Luz Ayson 10 Feb. 20, 1997 Kidney Disorder

42. Teodoro Canlapan 70 Oct. 31, 1998 Kidney Disorder

43. Juan Manalac 64 May 8, 1998 Kidney Infection

44. Ricardo Baltazar 43 Mar. 10, 1995 KidneyDisorder,Heart Failure

45. Leonor Garcia 45 Apr. 29, 1997 Kidney, Lung Ailment, Diabetes

46. Diego Licup 70 June 1996 Lung Problem

47. Euterio Manaje 82 July 2, 1998 Lung Problem

48. Maricel Hermudo 3 mos. Aug. 16, 1999 Lung Problem

49. Roberto Manquera May 15, 1999 Lung Problem

50. Cesaria Baluyot 72 Aug. 20, 1996 Lung Problem

51. Teodora Nicasio 1999 Lung Problem

52. Alejandro tayag 59 Aug. 13, 1998 Tuberculosis

53. Maxima Rivera 79 Dec. 27, 1998 Tuberculosis

54. Adriano Sicat July 12, 1999 Asthma

55. Edwin Mercado 3 Aug. 15, 1999 Asthma

56. Severina Ocampo 79 Aug. 23, 1999 Asthma

57. Victoriano Dionisio 72 Aug. 22, 1999 Asthma

58. Annabel Miranda 4 1995 Asthma

59. Gualupe Tolentino 73 July 25, 1998 Asthma, Diabetes

60. Jesus Valencia 62 Nov. 25, 1995 Infection and Diabetes

61. Angela Rodriguez 85 Jan. 22, 1996 Diabetes

62. Cayetano Simbulan 87 June 2, 1998 Diabetes

63. Maricel Valencia 15 Nov. 29, 1995 Enlargement of Stomach

64. Pasencia balbin 77 July 24, 1998 Fever, Stomach Problem

65. Vernalin Canlapan 6 June 17, 1996 Stomach Problem

66. Maximiano Mercado 82 Dec. 1998 Stomach Problem

67. Aurelio Pingol 40 July 10, 1997 Vomiting of blood

68. Ernesto Serrano 50 Dec. 1998 Ulcer

69. Diosdado Loanzon Sept. 6, 1995 Enlargement of Testes

70. Julieta Aguilar May 19, 1999 Infection

71. Jose Zapanta 9 mos. Aug. 1996 Internal Obstruction

72. Carolina Licup Jan. 12, 1999 Infection

73. Jude Dela Cruz 1 yr. 9 mos. 1995 Sudden Death

74. Kenneth Cortez 1 yr. 1 mo. Mar. 1997 Sudden Death

75. Ma. Corazon Mariano 21 Oct. 25, 1997 Sudden Death

76. Pascual Rodriguez 86 May 29, 1996 Sudden Death

List od sick at CABCOM Evacuees as monitored by Mandy Rivera from a community of 500 families

“To be able to say with certainty that both Subic and Clark are clean and free of toxic wastes, an affirmation that would benefit the United States and the Philippines, I am requesting the U.S. government for assistance in the following:

“1. Evaluation or confirmation of the two surveys conducted by Woodward-Clyde (Subic) and Asia Star Western International (Clark), through technical assistance, possible by the Environmental Protection Agency.

“2. The establishment of a joint Philippine-U.S. task force to assess the degree of contamination at Subic and Clark and to formulate plans for remedial action, if warranted.

“In the light of the U.S. concerns for global environmental degradation, it would be no more than appropriate and no less than morally imperative if measures were taken to ensure that no long-term harmful effects were to arise from the past use of the land for military purposes. Cooperation on contamination assessment would be seen as a logical step in addressing environmental concerns. The resolution of the issue needs concerted action, and I would suggest that the joint task force also look at the possibility of World bank involvement in this endeavor.”

3/ Sites included in the U.S. Environmental Protection Agency’s “Superfund” National Priorities List are among the Most contaminated and most hazardous places in the United States.

4/Environmental and Health Impact Report on Known and Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines by Paul Bloom, Jorge Emmanuel, et al.

5/ Ibid.; the Environmental and Health Impact Report took the data under “Source”, “Clean-Up Action” and some information under “Contaminant” directly from the U.S. Department of Defense documents.

6/ Ibid.

7/ In her letter to Senator Legarda-Leviste, U.S. Defense Undersecretary Sherri Goodman claimed that the United States conducted comprehensive environmental studies at Subic and Clark and “removed all containers of hazardous wastes and materials that we could” within the time allowed for its withdrawal.

8/ Exchange of Notes Constituting an Agreement Between the Republic of the Philippines and the United States of America Amending the Military Bases Agreement of 1947, Manila, January 7, 1979.

9/ Joint Statement of Philippine President Marcos and U.S. Vice President Mondale, May 4, 1978.

10/ Annex II, Subic Naval Base, Arrangements Regarding Delineation of United States Facilities at Clark Air Base and Subic Naval Base; Powers and Responsibilities of the Philippines Base Commanders and Related Powers and Responsibilities of the United States Facility Commanders, and the Tabones Training Complex.

11/Environmental Damage Caused by Activities in the United States Military Facilities: An Application of the Principles of State Responsibility for Transborder Pollution, by Vicente Gerochi IV, a thesis presented to the Ateneo de Manila College of Law, 1993.

12/ Environmental and Health Impact Report on Known and Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines by Paul Bloom, Jorge Emmanuel, et al.

13/ U.S. General Accounting Report.

14/ Statement by the Department of Foreign Affairs on the letter to Senator Loren Legarda-Leviste From U.S. Defense Deputy Undersecretary For Environmental Security Sherri Goodman Regarding the U.S. Obligation to Clean-Up Hazardous Wastes in Subic and Clark.

15/ Toxic tort has been defined as comprising harm to persons, property or the environment due to the toxicity of a process or substance; see Steve Gold, Toxic Torts: Burden of Proof, Standards of Persuasion and Statistical Evidence, 96 Yale Law Journal (1986)

18/ (Lat.) “So exercise your rights as not to injure another”; a principle recognized in municipal law and in relations between States, which states that one can exercise one’s rights in ways that do not harm the interests of others. In the Trail Smelter Arbitration case, the maxim was applied to mean that under international law, no State has the right to use or permit the use of its territory in such a manner as to cause injury to the territory of another State.

19/ Article VIII of the Supplementary Agreement Number Two to the 1991 Treaty of Friendship, Cooperation and Security Between the Government of the Republic of the Philippines and the Government of the United States of America: Agreement on Installations and Military Operating Procedure provides:

“1. An overall environmental protection program will be formulated by the Philippine Commander and the United States Commander. The Philippine Commander shall be responsible for the management and control of the disposal of hazardous or toxic waste generated by the operations, activities and training of Philippine forces on the base under this Agreement. The United States Commander shall be responsible for the management and control of the disposal of hazardous or toxic waste generated by the operations, activities and training of United States forces on the installations under this Agreement. The Commanders shall coordinate in the development and implementation of their respective programs to provide for environmental protection.

“2. The Philippine Commander and the United States Commander shall promulgated agreed substantive standards, consistent with Philippine laws of general application, governing the disposal of such waste in accordance with their responsibilities under this Agreement.

“3. Appropriate arrangements shall be made by the Philippine Commander and the United States Commander to enable to Government of the Philippines to monitor and check adherence to the standards as set forth in paragraphs 1 and 2 of this Article.”

20/Toxic Waste Contamination in the Former U.S. Military Bases in the Philippines and the Concept of State Responsibility for Damage to the Environment by Paula Defensor, Philippine Law Journal, June 1998 issue.

21/ 3 U.N.R. International Arbitration Award 1905 (1941).

22/ I.C.J. Rep. 4 (1949).

23/ On this issue, the International Court of Justice ruled that unilateral applications were possible not only where compulsory jurisdiction exists. The Court declared that in submitting the case by means of an Application, the United Kingdom gave Albania the opportunity to accept the International Court of Justice’s jurisdiction. This acceptance was given in the Albanian Government’s letter dated July 2, 1947. It will be noted that the International Court of Justice made an important pronouncement in this case on the possibility of forum prorogation in international judicial proceedings or the acceptance of unilateral summons to appear before the international court.

24/ Philippine Law Journal, June 1998 issue.

25/ Ibid

The date posted here is due to our website rebuild, it does not reflect the original date this article was posted. This article was originally posted in Yonip in 2012